Opinion: Who Defines Marriage?

University of California, Berkeley law professor John Yoo on the Supreme Court case concerning California’s Prop. 8.

This transcript has been automatically generated and may not be 100% accurate.

... I ... it ... gets back down to a very simple notion ... of fundamental ... rights fundamental concepts of justice fundamental concepts of Liberty and I look I can see ... we have fifty thousand children in California right now one and thing ... why can't my parents be married to ... me ... welcome back to Opinion Journal why Mary Kissel that was California Attorney General ... Kemal in Paris on gay marriage Supreme Court is hearing two very important cases this week ... we're looking at Berkeley law professor John Yoo here to talk about them ... I which I was start first with ... Hollingsworth versus Kerry ... the crop a case where ... a California law struck down gay marriage by ... Democratic majority now the courts hearing ... on that California's estate declined to defend ... this long ... to stay in ... this case Supreme Court I mean I think there is ... no some conservatives ... who are afraid of the outcome are now hoping the court might take the case now ... but the whole point of the initiative process ... is because the voters of California and didn't trust their elected officials to ... carry out their policies and so these initial process to go around the established government ... so Khona makes sense that you would have the defenders of the initiative we going courts sometimes the people or not the governor or the attorney general which is the case here ... um that's a matter also as a federal solution that's another state law that's for Californians to decide ... who under our Constitution is the best person for the best party to defend a lot ... and usually I would think the Supreme Court should accept that otherwise ... there been other cases of no snow will involve the Arizona immigration law with a court has accepted ... a private parties and accept effectively to defend along rather than elected officials stated that the Supreme Court finds standing in the goes ahead with the prop eight case ... what's the main issue here equal protection under the law ... well there's three different things a quirky due to take the case and I'm standing the second thing is to do which is never done before ... that has passed on the last two chances to do is to say ... these are inputs of protected classes you mention under ... the protection clause of the Constitution so any laws that harm then have to be ... given strict scrutiny or even intermediate scrutiny by the courts ... now the court may not have a majority for that even justice Kennedy who is thought to be the swing fifth justice here ... has been the previous two cases on gay rights ... not gone that way ... then they would be left with much of the trial judge's super Cisco's Judge Vaughn Walker said which was found which was ... the law then ... is unconstitutional or not depending on what the fuel is just the product of of what the locals and switch new Call bigotry or just a trade ... of cases a group and so I think that's a hard thing to do even though the poll showed majority Americans are moving towards favor ... for gay marriage ... it's I think it's a hard thing to say all the people who support are popping all the people who are majorities in the forty two other states that don't have the mantra called the gets ... the move on to the second case U S and the Windsor ... II which the court is hearing Wednesday as some of the funds bonds of marriage act ... Achleitner on aam piece of legislation ... um what is the relationship of this case to the proxy case ... ten years I think some people overlook this that is the court finds ... in the property case ... that the marriage is in the States cannot for having gay marriage ... then the second case about them and comes very easy because you would actually fall if the federal government can also discriminate against gays American said oh mom would have to be struck ... but if the court ... a word to say in the popping case no this is ... an issue up to the states which is mined him personally ... actually I'd been pro gay marriage I think he's had the same rate as the rest of us to be miserable for the rest ... but ... as a pulse members a cost to show that I don't think this through the courts to do to force on all the states ... but if the court went that way then and don't let it becomes a question of Federalists and does the federal government have the right ... to decide for itself what marriage means ... and there doesn't ... I think they do I think just the way we receive estates to sew the federal government does just for federal all federal coming can impose ... its definition of marriage on the states ... should Qeelin define marriage for purposes of our tax code benefits program to someone for sample ... if the state had polygamy ... we once in a federal government to accept polygamy into federal law that Obama's still goes to decide ... its own definitions for its own loss so what does this mean for the Roberts court Roberts court legacy ... is raising the Roberts court I think got off to a bad start for conservatives with disabilities decision last year ... and just wrote chief Justice Roberts said after the decision has been a goal off the mountain fortress of solitude of any property that might tell that to Malta for the summer ... well I think is able to find out whether the man of steel is Rick returned or whether we've got ... someone who's got a little more ... a Jelly bone backbone in response to the political forces around and ... if he's shown he can be browbeat art hacked into ... finding what the popular culture of the reviews wonder whether think is can it ... restores to more modest view the Constitution and the Supreme court's role in our society ... ok Berkeley law school Professor John you think you so much ... for being with us